Emergencies Act wasn’t needed to quell convoy protests, Ontario police force says

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The sweeping powers triggered by Prime Minister Justin Trudeau to quell February’s convoy protests were not needed, the Ontario Provincial Police said at the first day of hearings in a public inquiry to determine whether the federal government contravened the law in its use of the powers.

The provincial police force’s brief opening statement on Thursday focused on the legal requirements the government had to meet before it could invoke the federal Emergencies Act.

OPP lawyer Christopher Diana said Thursday in Ottawa that while the emergencies legislation provided useful tools, “there was sufficient legal authority in their absence to deal with the protest activities that took place over this period of time.”

The federal government, which initially said invoking the act was done on the advice of law enforcement, later clarified that they had asked for the powers in the act, not for the law directly.

OPP Commissioner Thomas Carrique told a parliamentary committee in March that the tools available through the act “made our operation very effective, and in the absence of having those tools, we could have not have been as effective.”

Mr. Diana’s comments followed introductory remarks from inquiry commissioner Justice Paul Rouleau, who said the focus of the Public Order Emergency Commission will be on the federal government’s decision-making. According to the Emergencies Act, a public order emergency can be declared only when threats to the security of Canada are so serious that they constitute a national crisis that cannot be effectively dealt with under any other existing law.

“While this commission will deal with a wide range of issues, its focus will remain squarely on the decision of the federal government,” Justice Rouleau said. “Why did it declare an emergency? How did it use its powers? And were those actions appropriate?”

Nearly 20 parties with standing in the commission also spoke briefly, outlining arguments they will advance as the commission determines whether the government’s use of the act – in response to the convoy protests in Ottawa over pandemic restrictions and blockades at border crossings – was legitimate.

During the parties’ remarks, the two sides of a steep divide became clear. On one side, a lawyer representing the federal government said invoking the act was a “reasonable and necessary” decision, while lawyers on the other – including those representing convoy protesters – argued that it was an unnecessary, lacked justification, and could pave the way for further inappropriate use of the act.

Over the next six weeks, the commission anticipates hearing 65 witnesses, including convoy organizers, city of Ottawa officials, civil society organizations, and representatives of the federal government and law enforcement. Mr. Trudeau will be among the last to speak. The government is required to call a public inquiry any time the Emergencies Act is invoked.

Public hearings on use of Emergencies Act: What to know about the commission and speakers being called

Justice Rouleau said the inquiry will not make any finding of legal liability, and that while it seeks to uncover the truth, it is not a trial. He also said the inquiry will be challenged by time constraints in the act that mandate his final report be completed by February, 2023, as well as by the volume of evidence, including more than 50,000 documents.

While the government has waived all cabinet confidence related to its decision to invoke the act, some classified documents are being shared with the commission but not the public, Justice Rouleau said.

The hearings are being held at a government building on Wellington Street – where, eight months earlier, hundreds of tractor trailers, truck cabs, pick-up trucks and other vehicles brought Ottawa’s downtown to a standstill for three weeks. About two dozen people, including convoy organizer Tamara Lich, assembled to watch the opening day, along with a cadre of lawyers.

Robert MacKinnon, one of the lawyers for the federal government, told the commission the act’s invocation was “a reasonable and necessary decision given the escalating volatile and urgent circumstances across the country.”

The government will present evidence that there were “countrywide threats to the security of Canada,” Mr. MacKinnon said. The federal approach was “proportional, effective and time limited,” he said.

However, Lakehead University law professor Ryan Alford, who has joint standing with The Canadian Constitution Foundation, challenged Mr. MacKinnon’s assessment. The government’s claim to a “reasonable basis” for declaring the public order emergency does not mean it had a legal or constitutional basis for “assuming unprecedented and destructive emergency powers,” he said.

The government used the temporary powers granted to it by the Emergencies Act to crack down on the demonstrators, including giving police the ability to arrest protesters within specific prohibited areas and financial institutions the power to freeze protesters’ accounts without a court order.

Brendan Miller, who represents a group of convoy protesters who have standing in the inquiry, also said there was “no justification whatsoever” to invoke the act.

Other parties spoke about the convoy’s impact on Ottawa residents. David Migicovsky, a lawyer for the Ottawa Police Service, said it inflicted an unexpected level of “community violence and social trauma” on residents.

During the protests, the police were widely criticized for failing to maintain public order and enforce the relevant laws. They were also accused of taking a lenient approach with protesters.

Mr. Migicovsky defended the police response to what he called an “unprecedented” protest for which there was little time to prepare. He said the service expected protests to remain peaceful and that most protesters would leave after the first weekend.

Paul Champ, a lawyer representing a coalition of Ottawa businesses and residents, reminded the commission that the capital city’s downtown is home to about 15,000 people. Residents were subjected to ear-splitting air horns, harassment, blocked streets and “general lawlessness,” he said.

“Many people in Ottawa felt like they were prisoners of their own home,” Mr. Champ said.

Lawyers representing Alberta and Saskatchewan also argued against the use of the Emergencies Act. Other tools and laws were sufficient to deal with the blockades, they said, adding the federal government did not properly consult them on the use of the act.

Several city of Ottawa officials are to testify on Friday, as is Zexi Li, a city resident who was involved in securing an injunction against the use of truck horns during the protests.

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